Wexler: Avoid vote chaos

By Kathy Bushouse
Staff Writer
Posted March 29 2004

U.S. Rep. Robert Wexler's legal pursuit of printers for touch-screen voting machines could have a profound effect on the November general election if a federal judge agrees with the congressman's assertion that not having the printers violates parts of the U.S. Constitution.

Should such a ruling come down this summer, elections officials could face having to scrap their practically new, multimillion-dollar touch-screen systems in favor of something else.

With his case fast-tracked by U.S. District Judge James Cohn and a trial scheduled for August, Wexler said he hopes elections officials in the 15 counties using touch-screen ballots are considering contingency plans now.

That way, should Cohn rule in his favor, "They will be in a position to remedy that defect and not cause chaos in November," Wexler said.

That's not as easy as it sounds, because it means figuring out what a judge will decide is the best way to fix a problem, said Palm Beach County Elections Supervisor Theresa LePore, one of three defendants in Wexler's federal case. Even before that happens, the judge must determine that a problem in fact exists, LePore said.

The case also names Secretary of State Glenda Hood and Kay Clem, the supervisor of elections in Indian River County and president of the state elections supervisors association.

"To be honest with you, I wouldn't know what to think about," LePore said. "I wouldn't know what to do. Bring all the poll workers in for emergency training and bring all the media in to get the word out ... which would take us away from our regular jobs of preparing for the election."

Wexler, D-Boca Raton, argues there isn't a way to manually recount ballots cast on touch-screen voting machines, creating a situation where there isn't an equal standard for handling ballots because votes cast on other types of machines can be counted by hand. Of Florida's 67 counties, 62 use optical-scan machines where voters draw a line or make a bubble on a ballot to mark their choices.

The touch-screen machines already can produce a printed record of each vote cast on a voting machine, which elections officials say could be used in manual recounts.

Wexler contends that a voter-verifiable printout, which allows someone to check their vote on the machine screen against a piece of paper, is the best route. Such printers are under development, but aren't yet certified by state or federal officials for use.

Should Cohn agree there is an equal-protection issue, he would dictate some sort of legal remedy to the problem, said Bruce Rogow, a constitutional law professor at Nova Southeastern University.

One possibility, Rogow said, would be that the machines couldn't be used. Another scenario, he said, is that the machines could be used but that another method, such as optical scan or paper ballots, also would have to be available.

If Wexler prevails, the turnaround time may be short but critical for elections officials, said Bruce Winick, a constitutional law professor at the University of Miami.

He said the lawsuit raises equal protection questions from 2000's Bush vs. Gore decision, in which the U.S. Supreme Court ruled that Florida's recount process was unconstitutional because the varying standards for recounting ballots in each county went against constitutional guarantees that each ballot cast in an election would be treated equally.

"Here we are in Florida, and we've had the situation of Bush vs. Gore, so we should all be on alert to avoid such a repetition," Winick said.

The problem, as elections officials see it, is one of timing: They start working on their plans months before Election Day. Changing the system just months before an election would create major trouble, they say.

"I'm not sure what our alternative would be," said Deborah Clark, supervisor of elections in Pinellas County, whose county uses the same Sequoia machines as Palm Beach County. Her county also uses optical scan for its absentee ballots, as does Palm Beach County.

She's keeping a watch on Wexler's case because it affects her county and the 14 others that use touch-screen machines. Figuring out how to handle a scenario where the new machines are suddenly ruled illegal "are the questions that are, I guess, in all of our minds," Clark said.

Among the potential issues: Training people, buying or leasing new equipment, or even getting word out should the systems have to change just months before the election.

LePore said her office will start preparing for November's election in May. Approximately 5,000 poll workers will be trained for the general election, with classes starting about three to four weeks before the election so people don't forget on Election Day what they've learned in class, LePore said.

That's precisely why, Wexler says, elections officials should start considering the consequences sooner rather than later.

"Those that are experts should consider every option available, just in case they need to change the system," he said. "I think that would be the prudent and responsible thing for elections officials in Florida to do."

Some argue the extra scrutiny afforded by Wexler's lawsuit is unwarranted. Jenny Nash, a spokeswoman for Secretary of State Hood, said there have been no major election machine problems reported to the state since touch-screen machines first were used in 2002.

"Why is Florida on the chopping block when we have the most up-to-date technology in the country? We've been a leader in election reform and ever since we put the new technology in place, there hasn't been one report of equipment failure," Nash said. "I think Florida is being held to a much higher, if not impossible, standard."

She said Hood's office thinks Wexler's federal case will be dismissed much like his state court case a dismissal Wexler is appealing. Palm Beach County Circuit Court Judge Karen Miller ruled in February that Wexler wasn't legally entitled to file his state lawsuit, and if he were entitled, that a Tallahassee court would be the proper venue.

Buddy Johnson, the Hillsborough County elections supervisor, said that rather than focus on a ruling that might come this summer, he's paying attention to things he can control, such as keeping voters feeling good about their voting system.

"We're trying to do that. People of all parties, of all demographics, we're trying our best to keep people confident, confident that our systems work," Johnson said. "And it's very difficult in this environment to maintain confidence."